*1 The Court previously granted Defendant Chiquita Brands International Inc. (“Chiquita”)’s Second Motion to Compel Compliance With Court Orders on Witness-Payment Discovery against the law firm of Conrad & Scherer LLP and Attorney Terrence Collingsworth (“Collingsworth”), and simultaneously granted Chiquita's request for an award of attorneys’ fees and costs incurred in litigating the motion [DE 1726]. Chiquita has since filed its fee petition [DE 1732], along with supporting proofs documenting the attorneys’ fees billed on this matter which have been paid in full to the law firm of Covington & Burling LLP, its original counsel of record [DE 1732-1 (Affidavit of Eric Hellerman); DE 1732-2 (Accounting Report--Billing Itemization); DE 1732-3 (Attorney Biographies)].

Attorney Collingsworth has filed a response in opposition to the fee petition [DE 1736], as has Conrad & Scherer [DE 1735]. Chiquita has filed its reply [DE 1740]. Following careful review of the parties’ submissions, the Court finds this matter is properly resolved without a hearing. For reasons discussed below, the Court grants Chiquita's petition in part, and sets the reasonable attorneys’ fees to be taxed in favor of Chiquita and against Attorney Collingsworth and Conrad & Scherer LLP at $30,057.50, payable by no later than May 20, 2020.

A. Background – Fee Entitlement

This Court previously concluded that Chiquita should receive an award of fees for the time spent litigating its second motion to compel Plaintiffs’ compliance with two discovery orders concerning witness payments made by or at the behest of Plaintiff's agents. The Court found a fee award justified “[b]ased on the historical dilatory and obstructionist discovery misconduct of Plaintiff's counsel,” as catalogued in Chiquita's motion, as well as counsel's “patent lack of good faith in the assertion of privilege as purported ground for withholding the vast majority of responsive documents on the witness payment issue.” [December 17, 2017 Order] [DE 1726, ¶ 6].

Although the December 2017 Order did not expressly identify the authority for issuing the fee sanction, in clarification the Court now states that this award is made pursuant to Fed. R. Civ. P. 37(b)(2)(A), which provides for sanctions for failure “to obey an order to provide or permit discovery.” Rule 37(b)(2)(C) further provides that, instead or in addition to the various substantive sanctions authorized by Rule 37(b)(2)(A), the court must order the payment of reasonable expenses and attorney's fees caused by the failure to obey the court's order by the disobedient party or the attorney representing that party, or both, “unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

Chiquita filed its second motion to compel compliance on April 27, 2016 [DE 1080], seeking enforcement of a May 2015 [DE 797] and an August 2015 discovery order [DE 872]. Those orders were direted to discovery transgressions of Attorney Collingsworth, who at that time was a partner employed by the law firm of Conrad & Scherer, a position he held up through approximately December 2015.[1]

*2 Chiquita has provided evidence that it attempted in good faith to obtain the various categories of withheld discovery material from Collingsworth before pursuing its second motion to compel. This material included, among other things, documents pertaining to witness payments made to Ivan Otero, a Colombian attorney (associated with Collingsworth) alleged to be a conduit of cash payments to various paramilitary figures anticipated to appear as witnesses in this case. Collingsworth had resisted production of that material, taking the position that Otero was not an “associate” or “agent” of any witness in the case, and therefore outside the sweep of the May and August 2015 discovery orders. This material also included a large score of heavily redacted documents, approximately 2/3 of which Collingsworth was ultimately ordered to produce without redaction (over asserted work product privilege objections).

Collingsworth urges the Court to deny Chiquita's fee petition outright, contending no sanction is appropriate because he had a good faith basis for disputing Otero's status as an “agent” or “associate” of any witness in this case, and that this was a reasonable, unresolved legal position at the time which “substantially justified” his initial refusal to produce the Otero documents. He also argues that at least nine of the redactions which he made on other documents were upheld by the Court, further evincing his good faith effort to comply. Finally, he argues that the fee now claimed by Chiquita is excessive, based on unnecessarily duplicative and unreasonable levels of hourly billings (148.3 total hours) on a relatively straightforward discovery motion.

Conrad and Scherer, in turn, argues that it should not share any fee liability in this matter because the two underlying discovery orders were directed to and exclusively referenced Attorney Collingsworth as the discovery wrongdoer – not Conrad & Scherer. It also seeks an apportionment of responsibility for any fee sanction entered, presumably on this same theory of eschewed responsibility for discovery abuses committed by firm members without its direct participation.

After carefully reviewing the record, the Court finds no evidence to support the suggestion that Collingsworth's insistence on withholding the Otero materials was substantially justified, or that any other circumstances would render the imposition of a fee sanction against him unjust. If Collingsworth felt he had a good faith basis for excluding the Otero materials from the court-ordered production of witness payment documents, when Chiquita pressed him for those specific materials after his first and incomplete production wave, he could have sought clarification from this Court, or pursued an interlocutory appeal to the Eleventh Circuit Court of Appeals. He did neither, but instead continued to delay compliance, operating on what was at best untested assumptions about Otero's relationship as an “agent” for at least two key paramilitary witnesses involved in this case. This intransigence compelled Chiquita to force the issue for a third time, triggering its second motion to compel compliance with the court-ordered witness payment discovery.

Collingsworth's position in resisting this production (or the cache of other heavily redacted documents) was not substantially justified, and no other circumstances exist which would render a fee sanction against him unjust. The Court therefore reaffirms its ruling that Collingsworth is liable to Chiquita as the “advising attorney” behind the discovery abuses for attorneys’ fees incurred in litigating this matter. In re Sunshine Jr. Stores, Inc. 456 F.3d 1291, 1304 (11th Cir. 2006) (“A party .. demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.”)(quoting Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)).

The Court also rejects Conrad & Scherer's argument that it should not be sanctioned because the discovery orders in question were directed specifically at Collingsworth, and not the law firm for which he worked. It does not contest that Collingsworth was a member of the firm, and hence an employee, at the time he committed the discovery transgressions at issue (between May 2015 and December 2015). Any implicit suggestion that the firm cannot be sanctioned as the “advising attorney” behind these transgressions therefore is rejected. Conrad & Scherer entered an appearance for Does 1-144 in August 2008, when Collingsworth filed a notice of firm affiliation under a Conrad & Scherer signature block. As counsel of record from that point forward, Conrad & Scherer owed Plaintiffs a duty of full representation, and owed this Court a duty to comply with all court orders, including discovery orders. That the firm may have delegated case management authority to Collingsworth does not relieve it of those duties. Its requested “apportionment” of the fee award – by which it presumably is asking the Court to discern which conduct is attributable to Collingsworth and which is attributable to the firm – is rejected given its continued affiliation with Collingsworth at all material times. As to Chiquita, Conrad & Scherer is therefore here held equally responsible, as “advising attorney” for the subject discovery abuses, with Collingsworth. Stuart I. Levin & Associates, P.A. v. Rogers, 156 F.3d 1135 (11th Cir. 1998).

B. Law Governing Attorney Fee Awards

*3 Reasonable attorneys’ fees are generally calculated using the traditional “lodestar” method to obtain an objective estimate of the value of an attorney's services. Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). Under this approach, a court determines a reasonable fee by multiplying “the number of hours reasonably expended on the litigation ... by a reasonable hourly rate.” United States v. Patrol Servs., Inc., 202 Fed. Appx. 357, 359 (11th Cir. 2006) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). A reasonable rate of pay is defined as “the prevailing market rate in the legal community for similar services by lawyers of reasonably comparable skills, experience and reputation,” Norman, 836 F.2d at 1299.

The party moving for fees bears the burden of establishing the “reasonableness” of the hourly rate and number of hours expended through specific evidence supporting the hours and rates claimed. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994). As a basic premise, the fee applicant may not recover fees for hours that are “excessive, redundant, or otherwise unnecessary,” Hensley, 461 U.S. at 434-35; Oxford Asset Management., Ltd. v. Jaharis, 297 F.3d 1182, 1197 (11th Cir. 2002). When a request for fees is unreasonably high, the court may “conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut.” Bivins v. Wrap it Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008). The court may also use “its own knowledge and expertise” in coming to an independent judgment regarding the reasonableness of a requested fee, with or without the aid of witnesses. Loranger, 10 F.3d at 781; Norman, 862 F.2d at 1299.

C. Reasonableness of Hours Claimed

Chiquita requests $84,843 in attorneys’ fees for work performed in briefing its second motion to compel compliance with the court's discovery orders by five different attorneys - John Hall (partner -37 years’ experience), Shankar Duraiswamy (partner - 15 years’ experience), Eric Hellerman (senior of-counsel -40 years’ experience), Jose Arvelo (associate -13 years’ experience) and Jaclyn Martinez Resly (associate -9 years’ experience). Covington & Burling LLP billed a combined total of 148.3 attorney hours expended by these attorneys on this matter, and Chiquita has paid that bill in full.

The Court agrees that the hours claimed are excessive, and appear to rest primarily on the inordinate number of attorneys working on this matter. The motion to compel was relatively straightforward and did not require the combined efforts of two partners, one senior “of counsel” and two senior associates. See generally Herrington v. County of Sonoma, 883 F.2d 739, 747 (9th Cir. 1989); Cruz v. Alhambra School Dist., 601 F. Supp. 2d 1183, 1191 (C.D. Cal. 2009) (“[C]ourts ought to examine with skepticism claims that several lawyers were needed to perform a task, and should deny compensation for such needless duplications when three lawyers appear for a hearing when one would do”) (quoting Democratic Party of Wash. State v. Reed, 338 F.3d 1281, 1286 (9th Cir. 2004)).

In determining the reasonableness of hours spent in relation to a discovery motion, the Court considers factors such as the complexity of the issues raised, the need to review the record and pleadings, and the need to conduct legal research, in addition to the length of the briefing – in this case eighteen (18) pages on the initial motion to compel [DE 1180] and thirteen (13) ages on the reply brief. Cimini v. White, 2020 WL 343766 (D. Nev. 2020). Having reviewed those factors here, the Court agrees that the hours claimed are not reasonable.

*4 First, the Court agrees that Covington & Burling over-staffed this matter by having multiple levels of review on a routine discovery motion performed by two senior partners, and a senior of-counsel affiliate. In reviewing the billing summary, it is apparent that Eric Hellerman, the of counsel affiliate based in New York, and Jaclyn Martinez Resly, the nine-year associate based in D.C., did the bulk of the work. The coordinated communications with and duplicative review of their briefing by other members of the litigation team was simply overkill, an unnecessary luxury resulting in duplicative attorney hours devoted to a straightforward discovery matter. The Court will therefore allow for compensation of the reasonable hours billed by Attorneys Hellerman and Martinez Resly only for work performed in bringing this motion to fruition. The hours billed by all other attorneys shall be excluded from the lodestar calculation.

With regard to the billable hours of Hellerman and Martinez Resly, the Court shall further reduce the number of hours claimed as excessive to the task at hand. As a preliminary matter, the Court will exclude the 7.5 hours of “block billing” generated by Attorney Hellerman on 3-2-16, which included multiple communications with Collingsworth apparently in advance of the contemplated motion, as well as actual “work on” the motion to compel. The time spent by counsel in effort to obtain the withheld discovery before beginning to draft the motion cannot be compensated under Rule 37 will not be included in the award.

A review of the account summary submitted in support of the fee petition further shows a total of 33 hours expended by Attorney Martinez Resly on the actual drafting of the initial motion (18 pages) and compilation of supporting exhibits, in addition to another 35 hours expended in preparation of the reply brief (13 pages) (excluding multiple email and other team communications on the item). The Court finds that the number of hours to be excessive and in the exercise of its discretion will reduce them by further. Accordingly, the Court finds that 22 hours is a reasonable number of hours attributable to the drafting of the initial motion, and 16 hours is a reasonable number of hours attributable to preparing the reply brief, for a total of 38 hours.

With regard to Attorney Hellerman, the Court finds 2.3 hours to be a reasonable amount of time expended reviewing and revising the initial motion to compel, and an additional 3.5 hours for reviewing the opposition papers and participating in the review and revise of the final reply, for a total of 5.8 hours.

D. Reasonableness of Rates

The second step in calculating the lodestar is to determine a reasonable hourly rate “calculated according to the prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984). Chiquita seeks an hourly rate of $ 750 per hour for Attorney Hellerman, and $565 per hour for Attorney Martinez Resly. The Court agrees that the relevant market for fixing the rates is the District of Colombia, the legal market in which this case was originally filed. See ACLU v. Barnes, 168 F.3d 423 (11th Cir. 1999). While the Plaintiffs challenge these rates as unreasonably high, they do not proffer any contrary evidence challenging the reasonable of the rates. The Court therefore accepts these rates as reasonable and commensurate with the prevailing market rates for lawyers of comparable experience handing similar types of litigation in the relevant market area.

E. Lodestar Calculation

In light of the reasonable hours and rates determined above, the Court calculates the lodestar as follows:

Accordingly, the Court finds a total lodestar amount of $ 25,820.00.

Pursuant to the foregoing, it is ORDERED AND ADJUDGED:

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 29th day of April 2020.